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Brandenburg v. Ohio

Excerpt from Lyles, et. al., Civil Liberties and the Constitution: Cases and Commentaries, 9th edition, 2011, pp. 57-61.

Brandenburg v. Ohio

395 U.S. 444 (1969)

Per Curiam.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing]  the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Ohio Rev. Code Ann. 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present [395 U.S. 444, 446] other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. [395 U.S. 444, 447]

The second film showed six hooded figures, one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of “revengeance” was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal. Penal Code 11400–11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297–298 (1961), “the mere abstract teaching  of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259–261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964).

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime [395 U.S. 444, 449] in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.


Justice Black, concurring:

I agree with the views expressed by Mr. Justice Douglas in his concurring opinion in this case that the “clear and present danger” doctrine should have no place [395 U.S. 444, 450] in the interpretation of the First Amendment. I join the Court’s opinion, which, as I understand it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but does not indicate any agreement on the Court’s part with the “clear and present danger” doctrine on which Dennis purported to rely.

Justice Douglas, concurring:

While I join the opinion of the Court, I desire to enter a caveat.

The “clear and present danger” test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war “declared” by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Frohwerk v. United States, 249 U.S. 204, also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security “by words of persuasion.” Id., at 206. And the conviction in Frohwerk was sustained because “the circulation of the paper was [395 U.S. 444, 451] in quarters where a little breath would be enough to kindle a flame.” Id., at 209.

Debs v. United States, 249 U.S. 211, was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his “opposition was so expressed that its natural and intended effect would be to obstruct recruiting.” Id., at 215.

 If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. Ibid.

In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out:

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Id., at 628.

Another instance was Schaefer v. United States, 251 U.S. 466, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.

Those, then, were the World War I cases that put the gloss of “clear and present danger” on the First Amendment. Whether the war power—the greatest leveler of them all—is adequate to sustain that doctrine is debatable. [395 U.S. 444, 452] The dissents in Abrams, Schaefer, and Pierce show how easily “clear and present danger” is manipulated to crush what Brandeis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California, 274 U.S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.

Mr. Justice Holmes, though never formally abandoning the “clear and present danger” test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673:

Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

We have never been faithful to the philosophy of that dissent. [395 U.S. 444, 453]

The Court in Herndon v. Lowry, 301 U.S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at 259–261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v. California, 314 U.S. 252, 261–263, we approved the “clear and present danger” test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, we opened wide the door, distorting the “clear and present danger” test beyond recognition.

In that case the prosecution dubbed an agreement to teach the Marxist creed a “conspiracy.” The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants “intended to overthrow the Government ‘as speedily as circumstances would permit.’” Id., at 509–511. The Court sustained convictions under that charge, construing it to mean a determination of “‘whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’” Id., at 510, quoting from United States v. Dennis, 183 F.2d 201, 212.

Out of the “clear and present danger” test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318. But an “active” member, who has a guilty knowledge and intent of the aim to overthrow the Government [395 U.S. 444, 454] by violence, Noto v. United States, 367 U.S. 290, may be prosecuted. Scales v. United States, 367 U.S. 203, 228. And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109, 130. And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.

Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the “not improbable” test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the “clear and present danger” test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes’ creation of the “clear and present danger” test, he said, “I cannot help thinking that for once Homer nodded.”

My own view is quite different. I see no place in the regime of the First Amendment for any “clear and present danger” test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.

When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

Action is often a method of expression and within the protection of the First Amendment.

Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted? [395 U.S. 444, 455]

Suppose one rips his own Bible to shreds to celebrate his departure from one “faith” and his embrace of atheism. May he be indicted?

Last Term the Court held in United States v. O’Brien, 391 U.S. 367, 382, that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying:

The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration. 391 U.S., at 377–378.

But O’Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court’s affirmance of that conviction was not, with all respect, consistent with the First Amendment.

The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is “free speech plus.” See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775 (Justice Douglas, concurring); Giboney v. Empire Storage Co., 336 U.S. 490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board v. Fruit Packers, 377 U.S. 58, 77 (Justice Black, concurring), and id., at 93 (Justice Harlan, dissenting); Cox v. Louisiana, 379 U.S. 559, 578 (opinion of Justice Black); Food Employees v. Logan Plaza, 391 U.S. 308, 326 (Justice Douglas, concurring). That means that it can be regulated when it comes to the “plus” or “action” side of the protest. It can be regulated as to [395 U.S. 444, 456] the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer.

But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card.

One’s beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an “active” Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think, that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one’s thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536–537 (Justice Douglas, concurring). They are indeed inseparable and a prosecution can be launched for the overt [395 U.S. 444, 457] acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience.


  1. the court in this case found the ohio’s criminal syndicalism case which prohibited public speech that advocates various illegal activities) overly broad. I disagree with the court in this case, I do not think the law was overly broad, and I think it is quite clear that Brandenburg was so clearly and articularily advocating for illegal activities.

  2. I think the system doesn’t work for everyone. In the case Feiner v New York a person was under arrested because was calling to fight for their rights while Ku Klux Klan that is a danger society is free to expresss their racial hate against others. I am not agree with the Court ruling 7-1. Brandenburg have had regulate his speech because it called to commited crimes against others.

  3. I think this is a very interesting case and while I don’t agree with the statements being made by Brandenburg, I do agree with the Court’s ruling and that it further specified and modified the clear and present danger test. This is due to our discussion in POLS356 about Newton’s third law of physics, with every action, there is an equal and opposite reaction, if Brandenburg is convicted under the clear and present test, what would happen to the protests today? If Brandenburg’s comments were regulated, freedom of speech and protests that better society could be detrimentally harmed. With that said, I also do understand the danger in placing the burden on the federal government as there are biases and this may let individuals who do intend to do harm go free, therefore, the controversy is understood.

  4. The clear and present danger test was modified and called the incitement to imminent lawless action, this was important because the Court placed a formidable burden on the federal government and the States to prove that the threat of violence is real before it can restrict speech.

  5. Although this is speech none of us would tolerate. Some of us may even want to ban such awful speech. However, if you start to limit speech, we see how limiting speech effects minorities during the civil rights movement. We shouldn’t ban dissenting speech, because we may end up banning all kinds of dissenting speech.

  6. I’m disappointed with the ruling of this case, Brandenburg clearly stated if the government kept suppressing the caucasian race they would take an aggressive revenge. It made the court seem pretty naive towards his “vague” threat.

  7. https://www.washingtonpost.com/history/2021/02/10/brandenburg-trump-supreme-court-klan-free-speech/
    On Wednesday, the second day of the impeachment trial, Rep. Jamie B. Raskin (D-Md.), the lead House manager, called Trump the “inciter in chief” and argued that the ex-president had “no credible” First Amendment defense for urging the mob to attack the Capitol. … Then, on Friday, Trump attorney David Schoen invoked Brandenburg in accusing House managers of selectively editing video of Trump’s Jan. 6 speech to make it seem like the president was inciting the crowd. Constitutional-law scholars have been debating the issue for weeks in dueling op-eds.

    • I think I don’t agree with the court on this one (not that it matters much). The KKK leader publicly threatened the life of the President and that has no consequences? That’s kind of messed up.

  8. Interesting that the Court published this opinion as a per curium opinion rather than an individual opinion, as if it was known that the decision would be controversial. Brandenburg is a landmark case in regards to free speech as from the case emerges the imminent lawless action test while also essentially overturning the precedent established in Dennis (1951) and Schenck (1919). The case has received criticism throughout the 21st century in particular for the lax approach it takes to hate speech, especially when we went through such a controversial time politically as of late.

  9. In this case the SC was determining the constitutionality of the syndicalism law (1 and 14 amendment). The majority ruling in this court decided that the law violated Brandenburg’s right to free speech. In order to determine this the court used a 2 pronged test. The court decided the ohio law was overly broad. With this the SC defended the speech made by Brandenburg member of the klu-klux-klan.

  10. Osikenoya Usman-AliuNov 12, 2020
    Brandenburg, a leader of Ku Klux Klan was charged for making a speech during their rally which violated the Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

    Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?

    (for Brandenburg)
    – Per Curiam opinion: Ohio violated Brandenburg’s right to free speech
    – 2 pronged tests to evaluate speech act
    (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action”
    (2) it is “likely to incite or produce such action.”
    – The criminal syndicalism act made illegal the ADVOCACY AND TEACHING OF DOCTRINES WHILE IGNORING WHETHER OR NOT THAT ADVOCACY AND TEACHING WOULD ACTUALLY INCITE IMMINENT LAWLESS ACTION. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
    (JJ. Warren, White, Black, Harlan, Stewart, Marshall, Brennan, Douglas)
    Nick Jones
    Nick JonesNov 11, 2020
    In this case, authorities in Ohio arrested Brandenburg and charged him with breaking the Ohio Criminal Syndicalism Act. A law that prohibited promoting violence as a means for social or political change. The local courts sent him to 1-10 years in prison and fined him. He used the ACLU and appealed to higher courts in Ohio (who used Dennis v U.S. to back up their points). because of Brandenburg and The ACLU failures at these lower level courts, they took it to the ACLU. Unanimously, the court decided in favor of Brandenburg, and argued that The Ohio Criminal Syndicalism Act was unconstitutional.
    Once again, another reflection on how certain ideologies in the public are protected by The Supreme Court, while others are not. Given the Brandenburg test, it seems as if the court should have upheld the conviction. The KKK is a terrorist organization and attempts to compare their “speech” with arguments the courts have made in the past, such as not being able to endorse either “anti-Semitic people are bad” and “Jews are bad” as if there is no difference, is indeed an endorsement of the actions taken place. To act as if, there is no difference between someone who’s ideology rests on the framework of a White ethno-nationalist society and supports the “removal” of nonwhite individuals from America and another who says those actions are bad… is merely another representation of how The Court (regardless of it’s intention) bystands for the sake of “moderation.”
    Oscar Jassiel Sanchez Cruz
    Oscar Jassiel Sanchez CruzNov 9, 2020
    In this case the court concluded that inhibiting Brandenburg from delivering his speech was in violation of his first Amendment right. Although the speech fomented violence it was not likely that the speech produced any imminent action.
    Hannah Ellis
    Hannah EllisNov 9, 2020
    The Court held that the Ohio Criminal Syndicalism statute cannot be sustained since its wording was too vague. It was ruled that appellant, a KKK leader, engaged in abstract teaching, which is not the same as preparing for violent action.
    Nizar Quafisheh
    Nizar QuafishehNov 9, 2020
    Some of my classmates brought this up, however I find this case difficult to analyze. On the one hand, I 100% believe that the KKK speaker should have been convicted, because as many have said the KKK is known to be a radical terrorist organization. On the other hand however, I believe that the statute was a bit loose in its mentioning of “advocating for violence” (like the California statute). This being the case, while as I said I believe the KKK was inciting violence, attempting to prove that through this statue would establish trouble in the future with such a subjective analysis being used.
    Nay Tjatur
    Nay TjaturNov 8, 2020
    The Court held that the Ohio criminal syndicalism law is a violation of the First Amendment.
    A two-pronged test was used:
    1. Speech can be prohibited if it is directed at producing imminent lawless action.
    2. It is likely to produce such action.
    The criminal syndicalism law fails the test because it does not determine the likeliness of speech to produce such action.
    Mateusz Plewa
    Mateusz PlewaNov 8, 2020
    I think ultimately the determining factor in this case, and other cases concerning the freedom of speech, was the safety of the larger community. In the case of Brandenburg, there was little, if any at all, risk for the larger public as a result of Brandenburg’s various expressions and speech. Therefore, I believe the SCOTUS decided for Brandenburg for this very reason, and of course that the government could not determine whether this exact speech would actually incite and produce imminent lawless action.
    Brittany Tamayo
    Brittany TamayoNov 4, 2020
    I have to say I strongly disagree with the outcome of this case. In effect, the statute was too broad and therefore the Supreme Court striked it down as unconstitutional. They used a two pronged test, which included (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” I am certain that a hate group such as the KKK uses diction that is likely to incite or produce lawless action.
    Haneen Abdelhafez
    Haneen AbdelhafezNov 3, 2020
    The significance of the ruling in Brandenburg v. Ohio, is that the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.” I disagree with the court’s ruling as the very origins of the KKK are rooted in violence, terrorism, and hate towards people of color, especially towards African Americans. Although there was no “imminent lawless action” at that point in time, the speech given by that KKK leader most probably inspired hate crimes committed by members of the KKK in the near future.
    Zain Hussain
    Zain HussainNov 2, 2020
    In this case, a KKK clan leader made a speech at a rally and was convicted for advocating violence. The question was if this violated free speech that advocated illegal activities. The SC ruled that the state law violated the KKK’s leader right to free speech using a two pronged test.
    Anshu Nidamanuri
    Anshu NidamanuriNov 2, 2020
    In this ruling the supreme court reverses a lower appellate ruling that KKK meetings incite violence and fear, while the supreme court argues that abridging their speech for this reason is a violation of the first amendment.
    Matt Springer
    Matt SpringerNov 2, 2020

    Video is from a youtuber called Mr. Beat, he covers Supreme Court Briefs in a very to the point way. His brief of this case is linked.
    Anshu Nidamanuri
    Anshu Nidamanuri
    Great video!
    Nov 2, 2020•Delete
    Kevin Lyles
    Marian Udoetuk
    Marian UdoetukOct 29, 2020
    I disagree with the sc’s ruling on this case. While there is no way to “know” if their speech or assembly would incite violence, the history of the kkk is known to incite violence, fear, and panic. Their symbols of actions are also violent.

    However the Ohio prohibiting speech that is likely to incite or produce imminent lawless action seems to be in clear violation of the first amendment. In most cases, one could know know whether speech would incite violence. However, since the group above has a history of inciting violence, it makes sense to try and prevent and punish it.
    Emma Whaley
    Emma WhaleyOct 29, 2020
    In this case, the appellant was convicted under the criminal syndicalism Act, for advocating the duty or propriety of crime or violence as a means of accomplishing reform and for voluntarily assembling with any assemblage of persons to teach/advocate the doctrines of criminal syndicalism. The appellant challenged the constitutionality of the act under the first and fourteenth amendments, however the lower courts dismissed his appeals. SCOTUS, however, noted probable jurisdiction and reversed this decision. What I found most interesting about this case is that it overruled Whitney v California, where they held that advocating violent means to effect political change involves such danger to the security of the state that the state may outlaw it. The court in this case, Brandenburg, found that the lower court judge failed to refine the definition of the crime in terms of mere advocacy (in this case) as something different than preparing a group for violent action/incitement to the violent action. Therefore, the statute at hand claims to punish mere advocacy and forbids assembly with others to advocate the described type of action, so it is deemed unconstitutional. I disagree with the majority opinion here because I feel as if the appellant’s actions were inciting violent action and not just advocating for it, as seen in the film shown, where he discusses what might happen if there continues to be suppression of the whites by the government, hinting towards becoming engaged in revenge.
    Elizabeth Peralta
    Elizabeth PeraltaOct 28, 2020
    I disagree with the ruling of this case which was that Ohio’s criminal syndicalism law which prohibited public speech that advocates various illegal activities was unconstitutional as it violated Brandenburg’s right to free speech.
    Jyah Vora
    Jyah VoraOct 28, 2020
    In this case, the court reversed the lower court’s decision of fining the appellate $1,000 and a 10-year prison sentence. I, however, do not agree with the court’s decision, and although in this one instance they could not prove a “clear and present danger” doesn’t mean they haven’t been a clear and present danger. Rather, the KKK’s origin is rooted in hatred and violence towards ethnic groups.
    Liliana Diaz
    Liliana DiazOct 25, 2020
    This case established imminent lawless action test: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action”.
    Ben Lee
    Ben LeeOct 25, 2020
    In Brandenburg the court broke from precedent set in Whitney and Schenck. It established new limits for protected speech. specifically the court found that speech is not protected if it both aims to incite imminent lawless action and is also likely to do so
    Yj Hwang
    Yj HwangDec 12, 2019
    If a tree falls in the woods and nobody is there to hear it, does it make it a sound? If racists gather in a corn field and do what they do and there’s no one there to get offended, can someone get offended? Also, would this fall under the Bad Tendency test?
    Kevin Lyles
    Kevin Lyles
    yes, it does make a sound…science. This “falls” under the “incitement to imminent lawless action” doctrine.
    Dec 12, 2019•Edit•Delete
    Kevin Lyles
    Leya Ismail
    Leya IsmailNov 4, 2019
    The Court’s opinion held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test (imminent lawless action test) to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
    Bill Rohm
    Bill RohmOct 31, 2019
    Weird as it may sound, I actually appreciate this ruling. I think we would all agree that the KKK’s ideology is appalling and deserves nothing but overwhelming contempt. With that said, Brandenburg was convicted under a law that was very similar to the ones used in cases such as Schenk, Dennis and Feiner to prosecute people for unpopular beliefs. I think it is important to remember that, historically, many opinions and ideologies that are overwhelmingly accepted today have not always been popular. While I don’t think free speech should be an absolute right, I am far more comfortable with the “imminent lawless action” standard than the earlier ones I’ve covered. Ultimately, I don’t believe the government is capable of discerning which ideas are so harmful that they can’t be circulated in civilized society.
    Andrew Tuider
    Andrew TuiderOct 30, 2019
    I think it’s important to remember that just like in Feiner v New York, it’s not that the content of the speech that was in question (racist and wrong as it may be in this case), it was the reaction to the speeches. In Feiner, people were gathered in a very public street corner and police officers were concerned about public order. In this case, they were in a farm with only other members present.
    Deleted user
    Deleted userOct 30, 2019
    I do not agree with the court, this should have been deemed unconstitutional because even if they are not inciting violence at the gathering, they are placing thoughts of violence which would stem into actions later. This case established the imminent lawless action test.
    Monalisa Mensah
    Monalisa MensahOct 29, 2019
    This case led to the creation of a test that was used to determine when inflammatory speech intending to advocate illegal action can be restricted. It is known as the “imminent lawless action.” The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
    a)if the speech is “directed to inciting or producing imminent lawless action,” AND
    b)if the speech is “likely to incite or produce such action.”
    Ayesha Mohammed
    Ayesha MohammedOct 29, 2019
    The case established the “imminent lawless action” test: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”
    Julio Hernandez
    Julio HernandezOct 29, 2019
    I do not agree with the courts ruling, because the court stated that the KKK is advocating, in which it’s their right to free speech. In which the the Ohio criminal syndicalism act would prevent the KKK for advocating, but what the KKK inspire/ advocate is hateful. The court has a bias in this case, because the KKK speech is similar to prior cases, in which the court did not deem it was a violation.
    Jessica Amyette
    Jessica AmyetteOct 29, 2019
    There is a clear, disgusting bias in the Court considering that socialist speech was seen as an act of inciting violence and not constitutionally protected, but racist hate speech and organization is seen as constitutionally protected.
    Daniel Garcia
    Daniel GarciaOct 29, 2019
    Brandenburg v. Ohio is the case where the Supreme Court created and used the “incitement to imminent lawless action” test. It is a two pronged test where the court determined that free speech can be limited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.”
    That being said, the Supreme Court’s decision that the Ohio Syndicalism Act violated the Freedom of Speech clause is completely contradictory to its decision in Whitney v. California. The Court should have ruled the opposite way in this case to stay consistent with Whitney.
    Anthony Sikorski
    Anthony Sikorski
    This case actually overturned the rulings in Whitney v. California, Schneck v. US, and Dennis v. US.
    Oct 29, 2019•Delete
    Kevin Lyles
    Jeanine Saleh
    Jeanine SalehOct 28, 2019
    This ruling really goes against the precedence of past cases and demonstrates a type of bias within the court. With Whitney the issue was the same but a different group of people.
    Marissa Scavelli
    Marissa ScavelliOct 28, 2019
    It is interesting that the court ruled that the Ohio syndicalism law violated Brandenburg’s right to free speech. Yet in other cases like Schenck and Abrams the court does not protect these parties rights to free speech. The difference between these cases is that Brandenburg deals with questionable speech from a KKK member whereas Schenck and Abrams deal with questionable speech “threatening” the government. When the government is “threatened” there is a clear and present danger, but when minority groups are threatened apparently there is no clear and present danger according to the courts decision. In these cases, we have not seen an evident attempt from groups to overthrow the government (there is no evidence). Additionally, it is common knowledge that the KKK was murdering people for years but even with this knowledge, there was no clear and present danger to limit Brandenburgs free speech!! I do not support the courts per curiam decision.
    Brooke Saunders
    Brooke SaundersOct 28, 2019
    I disagree with the Court’s ruling because the rally and the doctrine behind the Ku Klux Klan is one that inherently advocates for crime and has been shown to incite violence. The court should broadened the view of what is considered inciting violence and whether advocating is equivalent to inciting.
    Philip Garza
    Philip GarzaOct 28, 2019
    I think a reason the ruling in this case differs than the ruling in Whitney v California even though they are kind of similar, is because in Whitney it involved a communist group advocating violence towards the government. In Brandenburg it was a KKK group which advocates violence towards a certain group of people. The court also found that the Ohio law was “overly broad” and found it in violation of the constitution.
    Crystal Lopez
    Crystal LopezOct 27, 2019
    The court stated that the Ohio statute was to broad and could not place the speech of the leader of the KKK under it, so there was not enough evidence to rule it unconstitutional. His rights were protected and the Supreme Court reversed the appeals courts ruling. I feel like the court should have held the ruling in Whitney v. California because they were both a part of a group that excites violence towards something.
    Ines Josefina Castaneda
    Ines Josefina CastanedaOct 27, 2019
    This case brought mention of the gravity of evil test as to find a way convict Brandenburg.
    Sylvia Waz
    Sylvia WazOct 27, 2019
    The court ruled in favor of the appellant in this case. They ruled on the basis that the state cannot punish advocacy and there was a lack of evidence to act. This contradicts their prior decisions and precedents.
    Henry Jiang
    Henry JiangOct 25, 2019
    this case overruled Scheneck vs United States, as the Court held that the government cannot punish those that say inflammatory speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
    Deleted user
    Deleted userOct 31, 2017
    The court makes a rare reversal of a past decision. Contrary to Whitney v. California, the court in Brandenburg v. Ohio rules that a state cannot forbid the “advocacy” of ideals that do not incite lawless action. This presents a shift in the way the court looks at freedom of speech cases. Brandenburg repeals previous restraints on a citizen’s freedom of speech.
    Deleted user
    Deleted userOct 30, 2017
    I agree with the decision. As much as I despise ignorance and the KKK, I do not think they were posing a threat and that their freedom of assembly needed to be protected. The clear and present danger threat needs to be looked at broadly and it seems is directed more as a threat to the national government, which I don’t think this group posed a threat to.
    Deleted user
    Deleted user
    I completely agree as well. Silencing hate speech does nothing to combat bigots. In fact, it turns them into martyrs. All it does is make them harder to detect. I actually find the existence of hate speech useful. It makes it very easy to separate the bigots from the tolerant.

    Also, offensive speech is free speech. Do we ban religions for being offensive? Do we require majority approval for religions? The answer is no. So why should freedom of speech be treated any differently?
    Oct 27, 2019•Delete
    Kevin Lyles
    Deleted user
    Deleted userOct 29, 2017
    In his concurrence, Justice Black expresses the potential pitfall of free, democratic society by saying, “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” I believe this is an essential belief for a democratic government to have despite the paradoxical threat it presents to democracy. Many noble ideals like abolitionism, desegregation, women’s suffrage, equality for same-sex marriages, etc. were, at one time, views only held by a small minority, and the majority often used any legal tool available to them to silence dissenting voices. Unjust abuses of power to restrict political speech can be seen in Schenck v. U.S., Debs v. U.S., and in the trials of hundreds of thousands of suspected communists in the McCarthyism/Red Scare era. Using Justice Oliver Wendell Holmes’ analogy, who is to say Schenck’s and Debs’ shouts of “fire” were false? As I see it, they were calling attention to an urgent issue that should have been considered from all sides. Do we really want the majority to have the authority to tell us that when we are “shouting fire in a crowded theater,” it is false, and to send us to prison for believing otherwise?

    Brandenburg’s views are obviously abhorrent to most of us now, but white supremacy was for a long time (and still is?) a dominant ideology in the United States. Are those the kind of people we would want to empower to restrict our right to express our thoughts? Is there anyone virtuous enough we can trust to justly decide what opinions are worth hearing? The right to think freely is the most fundamental of human rights, but that right is not meaningful without the right to express those thoughts, particularly in the political arena.

    Deleted user
    Deleted user
    The desire to ban “hate speech” comes from the admirable intention to prevent words from causing harm, but “the road to hell is paved with good intentions.” Christopher Hitchens once made a particularly powerful argument when talking about free speech and the dangers of using the ends to justify the means in a legal context:

    [In A Man for All Seasons,] Thomas Moore decides that he would rather die than lie or betray his faith, and at one moment, Moore is arguing with a particularly vicious, witch-hunting prosecutor, a servant of the King and a hungry and ambitious man.

    And Moore says to this man, “You’d break the law to punish the Devil, wouldn’t you?”

    And the prosecutor, the witch-hunter, he says, “Break it? I’d cut down every law in England if I could do that, if I could capture him!”

    And Moore says, “Yes, you would, wouldn’t you? And then when you’d cornered the Devil, and the Devil turned round to meet you, where would you run for protection, all the laws of England having been cut down and flattened? Who would protect you then?”
    Oct 29, 2017 (edited Oct 29, 2017)•Delete
    Kevin Lyles
    Deleted user
    Deleted userOct 29, 2017
    In this case Justice Black made an interesting distinction between protection of speech during declared war time and not. He stated that “clear and present danger” test is congenial to the 1st Amendment in the time of a declared war, I am certain in is not reconcilable within the 1st Amendment in days of peace.
    Christopher Nevarez
    Christopher NevarezOct 29, 2017
    I agree with the decision but see myself agreeing with Justice Douglas’ concurring opinion as opposed to the majority opinion. Justice Douglas clearly rejects the use of the “clear and present danger” doctrine because of its very subjective use in previous cases. The “clear and present danger” doctrine seems to mirror the Lemon Test because the Court slowly moved away from each simply because of how malleable and inconsistent both tests are. I also agree with Justice Douglas’ claim that action is often used as a method of expression and therefore is within the protections granted by the First Amendment. He uses the example of draft card burning which seems to be a nice foreshadowing for Texas v. Johnson where the Court rules flag burning as constitutional.
    Deleted user
    Deleted userOct 29, 2017
    both of these cases and the recent rallies on the east coast and tennessee have me wondering why it is important for Nazi followers and other obvious hate groups to propagate and promote their agendas. This may be a stretch but many states in the United States refuse to allow felons and exfelons to vote in elections. This is because they have violated the law and therefore should not be allowed to speak on law making. Is it unconstitutional to reject the votes of the felons because of their actions? I am aware that felons still have access to excercise their first amendment rights however i believe that if your message is one that has historical hateful and treachorous views then they should be suppressed. Specifically to the Nazi party, a party that exists to promote an agenda of White Superiority and the inferiority of everyone else. In this case the court decided that if said speech is likely to promote lawless or harmful action than it can be prohibited, however it does not specify from which side. If a nazi rally was held at UIC and students became violent in oppposition to the Nazi rally could the state supress the constitutional rights of the Nazi rallyists?
    Arianna Brown
    Arianna BrownOct 18, 2016
    Justice Black, concurring: The “clear and present danger” doctrine should have no place in the first amendment.
    Justice Douglas, concurring: There is no place for “clear and present danger” in the first amendment. Every idea is an incitement to some extent.
    Deleted user
    Deleted userOct 13, 2016
    5. The court ruled unanimously in a per curiam decision for Brandenburg. The court ruled that Ohio cannot constitutionally punish abstract advocacy of law violation. The Opinion used a two-part test in determining whether or not speech should be prohibited. This occurs if it either 1. is directed to inciting or producing imminent lawless action or 2. it is likely to produce such actions. The syndicalism law ignored the potential of a law to incite lawless action and is therefore unconcstitutional.
    Deleted user
    Deleted userOct 10, 2016
    Team 1

    7. Significance of case
    This was a landmark U.S Supreme Court case based on the first and fourteenth amendment of the constitution. The court held that government can not punish inflammatory speech, unless that speech is directed to inciting and is likely to incite, imminent lawless action.
    Deleted user
    Deleted userDec 1, 2015
    *This case overruled Whitney vs. California
    Comments above copied from original document
    Deleted user
    Deleted userOct 12, 2015
    How could it be determined by the ordinary person about to participate in questionable speech just how likely it is to incite lawless action? This case has many ambiguities beyond Ohio’s Criminal Syndicalism statute. The prong is too vague to be accurately used in present society.
    Comments above copied from original document
    Deleted user
    Deleted userOct 12, 2015
    The importance of the case is that the Court distinguished between speech which was “mere” advocacy of lawless action and speech which was directed at inciting or producing imminent lawless action. In other words, speech which simply advocates lawless action is protected whereas speech directed at inciting imminent lawless action is not protected. To me, the distinction appears to be facially subjective. However, one can argue that what protected the speech within the KKK rally was its location (E.G., in a rural farm with like-minded individuals and not an area with that was more “public” such as the street corner in Feiner.)
    Comments above copied from original document
    Aubrey DeGroot
    Aubrey DeGrootOct 13, 2014
    The two prongs used in this case were that speech could be prohibited if it produced lawless action or if it is likely to produce such action. These two prongs are so ambiguous that I just cannot see how the court can properly decide someone’s true intent. I find it especially interesting that the Court finds the law to be overly broad because it does not fit into these two prongs. I feel like with enough productive advocacy, anything really can have a big enough effect.
    Comments above copied from original document
    Deleted user
    Deleted userOct 13, 2014
    These are one of those cases that just shock me! I can’t agree with the outcome, nor can believe it was 8-0. I feel like that new prongs made were only proposed to fit the circumstances and the likelihood that a case of this nature would be in favor of the KKK especially during the time frame. I don’t know what more proof did they need; meetings were recorded and the KKK was biggest organization in Ohio at the time. The way they measured the word “immediate” was probably the biggest problem I had with this case.
    Comments above copied from original document
    Deleted user
    Deleted userOct 13, 2014
    While I am obviously against everything that the KKK stands for, I was also not a huge fan of the Syndicalism Acts in various states. Syndicalism seems very specific and rare. Essentially, the Syndicalism statute makes it illegal to promote through speech, press or assembly “violent” political or industrial reform. The statute seems “on its face” to be intended to punish/prevent violent political actions in a very straightforward manner. However, in the real world there are few cases that are “black and white” there is a “gray area,” or at least an area of cases that do not overtly seem to be “violent” in their campaigns for political reform. With this, I believe that the Syndicalism Act is ineffective as a means of preventing attacks on the government. I believe that the social context of the Syndicalism Act and the Smith Act (as applied in Dennis v. US) was all about anti-communism and an irrational fear of Soviet world-domination. I say this because “syndicalism,” as it is applied to these cases that we have been assigned, seems to be a far more serious crime than the incidents it is being applied to. I recently observed the trial of a group of young men from Florida who plotted to bomb the NATO Summit in Chicago a few years back. They had made their plan to do so because they were anarchists. This case seemed like it fit the syndicalism bill much more comfortably than some dumb racist Klansmen in Ohio, even though these men threatened “revengeance” (not a real word) against Congress for not caring about white people (LOL). My point is that the Klansmen seemed to be too uneducated and narrow-minded to be threatening the government. They appeared to be opposing racial equality more than anything. Because of their opposition to specific Congressional actions, as opposed to the FL anarchists I observed, who opposed the government all together, the racist inbreds had a right to free speech (unfortunately).
    -Ammar Sheikah

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